Opinion
No. X06 CV 99 0170961 S
July 7, 2003
MEMORANDUM OF DECISION ON THIRD-PARTY DEFENDANTS' MOTION TO STRIKE THE THIRD-PARTY COMPLAINT (#216)
On November 12, 1998, the defendant James Levin (Levin) was working as an owner operator trucker under contract with interstate motor carrier Paul Arpin Van Lines (Paul Arpin) also named as a defendant in this action. Levin hired the plaintiff Russell Harris (Harris) on that date to help him move an unnamed individual's personal property from an apartment complex in Stamford, Connecticut, to Wisconsin. Harris was injured in Stamford while so employed.
Harris filed his complaint in the superior court in May 1999, claiming in pertinent part that Levin's negligence and carelessness caused his injuries and damages. In the amended complaint filed in October 2000, Harris sued Levin's alleged employer, Paul Arpin, asserting that Paul Arpin should be held vicariously liable for Levin's negligent acts. Paul Arpin then filed a third-party complaint against V. Cheryl Womack, the National Association of Independent Truckers, Inc., VCW, Inc., Preferred Administrative Services, Inc., National Surety Corporation, and Fireman's Fund Insurance Company (collectively referred to herein as the "insurance carrier") on the stated premise that if the workers' compensation/employer's liability insurance carrier had properly performed its administrative duties, then Paul Arpin would have been protected from this litigation.
Harris asserts that he never filed a claim for workers' compensation benefits against Levin; however, it is alleged in the third-party complaint that Harris has been paid approximately $75,000 in workers' compensation benefits by Levin's insurance carrier. None of the third-party defendants have been sued by Harris.
The third-party complaint is asserted in four counts: common law indemnification (first count); equitable indemnification (second count); contribution (third count); and equitable indemnification (fourth count). The third-party defendants have moved to strike the complaint against them, arguing that it fails to state any claim for which relief may be granted. Paul Arpin has objected to the motion to strike.
"The purpose of a motion to strike is to contest . . . the legal sufficiency of the allegations of the complaint . . . to state a claim upon which relief can be granted . . ." (Citations omitted; internal quotation marks omitted.) Peter-Michael, Inc. v. Sea Shell Associates, 244 Conn. 269, 270, 709 A.2d 558 (1998). "A motion to strike admits all facts well pleaded." Parsons v. United Technology Corp., 243 Conn. 66, 68, 700 A.2d 655 (1997). "In deciding upon a motion to strike a trial court must take the facts to be those alleged in the complaint . . . and cannot be aided by the assumption of any facts not therein alleged." (Citations omitted; internal quotation marks omitted.) Liljedahl Brothers, Inc. v. Grigsby, 215 Conn. 345, 348, 576 A.2d 148 (1990). "[A motion to strike] does not admit legal conclusions or the truth or accuracy of opinions stated in the pleadings . . ." (Citations omitted; emphasis omitted.) Mingachos v. CBS, Inc., 196 Conn. 91, 108, 491 A.2d 368 (1985). "The court must construe the facts in the complaint most favorably to the plaintiff." (Internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 580, 693 A.2d 293 (1997). "Thus, [i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied . . ." (Citation omitted; internal quotation marks omitted.) Gazo v. Stamford, 255 Conn. 245, 260, 765 A.2d 245 (2001). "A motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged." (Citations omitted.) Novametrix Medical Systems v. BOC Group, Inc., 224 Conn. 210, 215, 618 A.2d 25 (1992).
The gist of the third-party complaint is summed up in paragraphs 17, 28, 29 and 30, wherein Paul Arpin asserts that
[o]n or about February 6, 1998, VCW, Inc. issued an "Evidence of Coverage" (Exhibit D) thereby providing Workers' Compensation Insurance and Employer's Liability Insurance under Policy #WP 80763529 by the National Surety Corporation, to certificate holder James Levin, all of which inured to the benefit of Motor Carrier Paul Arpin Van Lines, Inc., as aforesaid, and as so noted on said "Evidence of Coverage" under the caption "MOTOR CARRIER; "
The referenced document, Exhibit D to the third-party complaint, provides assurance to the lien holder motor carrier, in this case Paul Arpin, that physical damage coverage will not be canceled without providing the lien holder ten days written notice. That provision is the only mention of Paul Arpin in the document.
[i]f in fact plaintiff [Harris] is able to prove the allegations so made in his Complaint, then the third-party defendants . . . are liable to the third-party plaintiff, Paul Arpin Van Lines, Inc., for any damages proven thereunder for the reason that the third-party defendants . . . were negligent in the administration of Russell Harris' claim in that they failed to obtain from plaintiff Russell Harris a voluntary workers' compensation agreement and/or a written affirmation of a workers' compensation claim by Harris, prior to making payments to Harris so as to protect the [Paul Arpin] defenses in the within action of exclusivity and election of remedies;
[t]he negligence of the third-party defendants in the claims handling of plaintiff's [Harris'] claim rather than any negligence of the third-party plaintiff was the direct and immediate cause of any damages or injuries sustained by the (defendant) third-party plaintiff and their negligence was active and primary, whereas any negligence of the third-party plaintiff, which is expressly denied, was passive and secondary;
[t]he third-party plaintiff did not know of such negligence of the third-party defendants . . ., had no reason to anticipate it and quite reasonably relied on the third-party defendants . . . not to be negligent, and said third-party defendants were in control of the situation to the exclusion of the third-party plaintiff.
Nowhere in the third-party complaint does Paul Arpin allege that it entered into an indemnification agreement or other contract with the third-party defendants, or that it maintained workers' compensation coverage for employees of its independent contractors, or that it was expressly named on any insurance policy or contract as a third-party beneficiary, or that it has paid any benefits to Harris as a result of the accident on November 12, 1998.
Three of the four counts asserted in the third-party complaint are indemnification claims. The Connecticut Supreme Court wrote in Amoco Oil Co. v. Liberty Auto Electric Co., 262 Conn. 142, 148, 810 A.2d 259 (2002), that "[t]he logic and rationale underlying our indemnity case law are based on the premise that an action for indemnification is one in which one party seeks reimbursement from another party for losses incurred in connection with the first party's liability to a third party." Id. "The right to indemnity is clear when the obligation springs from a separate contractual relation, such as an employer/tenant's express agreement to hold the third-party landlord harmless, or a bailee's obligation to indemnify a bailor, or a contractor's obligation to perform his work with due care . . ." Ferryman v. Groton, 212 Conn. 138, 144-45, 561 A.2d 432 (1989). There are no allegations in the third-party complaint setting forth any contractual duty owed by the insurance carrier to Paul Arpin, notwithstanding Paul Arpin's complaint that if the insurance carrier had performed its contractual duty to Levin, then Paul Arpin would not have been sued.
In the absence of a contract to indemnify, the supreme court noted in Burkert v. Petrol Plus of Naugatuck, Inc., 216 Conn. 65, 579 A.2d 26 (1990), that
a party is entitled to indemnification . . . only upon proving that the party against whom indemnification is sought either dishonored a contractual provision or engaged in some tortious conduct . . . We have also consistently held that, if a claim for indemnification is grounded in tort, reimbursement is warranted only upon proof that the injury resulted from the "active or primary negligence" of the party against whom reimbursement is sought . . . Such proof requires a plaintiff to establish four separate elements: (1) that the other tortfeasor was negligent; (2) that his negligence, rather than the plaintiff's, was the direct, immediate cause of the accident and injuries; (3) that he was in control of the situation to the exclusion of the plaintiff; and (4) that the plaintiff did not know of such negligence, had no reason to anticipate it, and could reasonably rely on the other tortfeasor not to be negligent . . .
(Citations omitted; internal quotation marks omitted.) Id., 74.
Paul Arpin alleges in the third-party complaint that Levin's insurance carrier was negligent in its handling of Harris' claim, that such negligence rather than Paul Arpin's was the cause of any potential recovery against Paul Arpin, that the insurance carrier was in control of the claim to the exclusion of Paul Arpin, and that Paul Arpin did not know of the carrier's negligence, have any reason to anticipate it, and quite reasonably relied on the carrier not to be negligent. These conclusory allegations completely miss the point of Harris' complaint against Paul Arpin, and therefore are legally insufficient to support an action, whether in equity or common law, for indemnification against Levin's insurance carrier.
Critical to the court's analysis is the premise that "[i]ndemnity involves a claim for reimbursement in full from one where primary liability is claimed to rest." Kaplan v. Merberg Wrecking Corp., 152 Conn. 405, 412, 207 A.2d 732 (1965). Returning to Harris' complaint against Paul Arpin, which claims at paragraph 26 that "Paul Arpin is vicariously liable for the negligent acts of defendant Levin which caused injury to the plaintiff, Russell Harris," it is clear that Harris is not complaining about whether he has been paid workers' compensation benefits by Levin's insurer, which is what Paul Arpin contends in its third-party complaint. Rather, Harris has sued Paul Arpin on the theory that Paul Arpin is independently and vicariously liable to him for his injuries and damages sustained while he was employed by Levin. Such vicarious liability arises from the relationship between Paul Arpin and Levin, as the independent contractor, who then hired Levin to help him do the job assigned. Levin's insurance carrier is responsible only to Levin, and according to what is expressed in the third-party complaint, cannot under any theory be held primarily responsible for Paul Arpin's alleged role in this litigation.
In its objection papers, Paul Arpin argues that it mandated all of its owner operators to purchase workers' compensation insurance "on all lumpers or helpers, thus affording to the interstate carrier Paul Arpin Van Lines, Inc., the workers' compensation exclusivity defense sought by it." Objection to motion to strike, p. 9. Paul Arpin's reliance on any immunity implied by our workers' compensation law is misguided. Indeed, the Connecticut Supreme Court has just clarified that General Statutes § 31-291 provides "[a]n injured employee [Harris] of a subcontractor [Levin] (the right to] sue the general contractor [Paul Arpin], if he can establish a basis for the contractor's liability to him under our case law," even when the subcontractor has paid workers' compensation benefits. Pelletier v. Sordoni/Skanska Construction Co., 264 Conn. 509, reversing in part, Pelletier v. Sordoni/Skanska Construction Co., 262 Conn. 372, 815 A.2d 82 (2003).
Vicarious liability, not improper claims handling, is the theory underlying Harris' case against Paul Arpin. Harris' claim that Paul Arpin is vicariously liable for his injuries is the direct, immediate cause of any potential recovery by him against Paul Arpin, and, under any allegations asserted in the third-party complaint, such liability cannot legally be shouldered by the third-party defendants. The motion to strike the indemnity claims (first, second and fourth counts) is granted.
The third count of the third-party complaint claims contribution from the third-party defendants on the same premise as discussed with respect to the indemnity claims. In Smith v. New Haven, 258 Conn. 56, 779 A.2d 104 (2001), the court distinguished indemnity from contribution: "[I]ndemnity involves a claim for reimbursement in full from one on whom a primary liability is claimed to rest, while contribution involves a claim for reimbursement of a share of a payment necessarily made by the claimant which equitably should have been paid in part by others . . ." (Citation omitted; internal quotation marks omitted.) Id., 67. The third-party defendants argue that the contribution claim must be stricken because it is not alleged, nor can it be alleged, that the third-party defendants are responsible for the same injuries to Harris that allegedly Levin and Paul Arpin have caused him.
Generally, the right to contribution "exists only in postjudgment proceedings pursuant to General Statutes § 52-572h." Aponte v. Johnson, Superior Court, judicial district of Fairfield at Stamford, Docket No. 114281 (September 18, 1992, Rush, J.) ( 7 Conn.L.Rptr. 364, 366). "In addition, a defendant in a tort action may not assert a claim for contribution against a third-party defendant as he is not a `liable defendant' for purposes of § 52-572h (g)." Dallicker v. Maritime Center at Norwalk, Superior Court, judicial district of Fairfield at Stamford, Docket No. 130200 (April 15, 1997, Lewis, J.); Intertown Realty Co. v. New England Heating Cooling, Inc., Superior Court, judicial district of Hartford/New Britain at Hartford, Docket No. 367243 (May 8, 1992, Miano, J.) ( 6 Conn.L.Rptr. 404, 405). As discussed in Gurton v. Board of Education, Superior Court, judicial district of New Haven, Docket No. 304261 (April 1, 1991, Hodgson, J.) ( 3 Conn.L.Rptr. 452), General Statutes § 52-572h (h) gives a defendant, whose liability has been increased by a reallocation as provided for by the statute, a right to contribution from another defendant in the amount of the excess over his proportionate share of the claim.
Under the circumstances such as in this case, where the third-party defendants are not defendants to the plaintiff's action, reallocation as provided by General Statutes § 52-572 (h) cannot occur and therefore no right of contribution exists. The motion to strike the third count is granted.
CONCLUSION
The third-party complaint is stricken in its entirety.
ROBERT F. McWEENY, J.